Pages

Archive for the ‘Accountability’ Category

Given that the present government ridden with an unsolvable mess owing to corruption scandals and an exposed decision-making process for which the Prime Minister today accepted responsibility, it would interesting to examine the role of the judiciary in the specific context of supervision of the government’s activities.

The democracy in India was quite a scandalised one till the end of last year, given its disregard for valuable rights of the citizenry, the lack of accountability in its own portals and its reticence in taking on the Executive and the Legislative wings of the State. On several occasions when its own legitimacy was in question amidst widespread criticism as to its authority to appoint itself and exposed instances of disproportionate assets of its members- casting tenable aspersions on its own functioning, the judiciary didn’t really address those concerns, instead conveniently bypassing them against its shroud of secrecy and independence.

Linked closely to the accountability of the judiciary is the extent of judicial authority to question accountability mechanisms within the Executive. The controversy surrounding the 2G-Spectrum and the appointment of the CVC provide us a valuable opportunity to evaluate its role as guardian of the democratic process. An article by Shylashri Shankar in yesterday’s Times of India reflected on the change in judicial attitudes towards vital issues of public importance, specifically as to rights of the citizenry that are not expressly provided.

The Apex Court’s decision quashing the appointment of the CVC P.J.Thomas based on procedural irregularities in the decision making process indicates that the judiciary under the new Chief Justice S.H.Kapadia isn’t hesitant in taking intruding into a critical executive domain when the issues concerned involve legitimate concerns of the democracy, even if such concerns are not directly addressable by the Court. Given that the appointment of the CVC is a critical political and constitutional decision, the consequences of which would weigh significantly on the ruling parties, this decisions of the Court is quite a severe blow to the government. Questioning the decision of the high power committee that made this appointment however turned on an interpretation of what would be “impeccable reputation” of the appointee. Evidently this is a purely subjective issue; therefore the Court’s approach of even scrutinising the decision was very impressive, let alone quashing the decision itself. While the extent of power exercisable in this regard, and the scope of a PIL to question such decisions of the Executive are a matter to be debated separately, the merits of this specific matter would point to a very changing attitude of the judiciary at the start of the decade.

I would like to point out other judicial decisions in the past years where the Court has actively tried to usurp executive functions in the interests of an aggrieved citizenry. For instance, earlier in 2010 the Court followed closely on the heels of an earlier decision by directing special investigations by the CBI into matters concerning a State to which the CBI’s jurisdiction did not exist. Given that the State of West Bengal here specifically barred the CBI from interfering, an executive decision was made by the Court against the consent of the State Executive. Similarly, executive decisions were questioned again when two governors challenged their own dismissal on grounds they alleged to be unconstitutional and against the ‘spirit of their office’. Here too the court struck a mighty blow to the strngth of the Executive. As Shylashri in her article points out, this pathology of the Court could in fact depend on the extent of legitimacy of the government itself. Her take on this is that the attitude of the judiciary towards the government has varied with the majority commanded by the ruling government in the legislature. For instance, in the Indra Gandhi period when the Congress commanded an absolute majority, judicial review succumbed to the will of the ruling coalition as opposed to other periods when the government is a result of an unstable or weak coalition when the judiciary takes it upon itself to remedy the errors of accountability and faulty decision making of the government upon itself.

Manoj Mitta in his article provides an interesting angle to this change in judicial attitude, attributing it to the new CJI.

Information Commissioner Shailesh Gandhi in an internview to the Rainmaker recently described the Public Information Officer of every Department as a ‘postman who can only deliver what exists’.

“People don’t really understand what information is.”

Now reason for surprise regarding the RTI is that it is far too successful for its own good. In the first 2 years, more than 2 million RTI application were filed. In the next two years the number jumped twofold. Its success did not lie in just the numbers but the patterns that these numbers revealed. In a recent study, it was found that upto 30 % of application were filed from rural areas and about 10% of the applicants were from lower income brackets. 60% percent of the applications are filed towards revealing administrative and bureaucratic inadequacies and misfeasance and about 15% are directed at corruption. Most of the Appeals before the Commission end up in ruling against the Public Authorities (the number is close to 95%). This trend is very admirable but the challenges posed thereby should be viewed as a significant threat to the future success of the RTI Act.

True that the foremost purpose of the RTI is providing information as it exists; but the underlying object of the RTI Act is as an accountability mechanism. The idea is to hold government functionaries responsible to the people for their screw-ups. Towards this end, it is not enough that people can be provided with information- the process must be followed up with redress.

I just happened to study a few cases before the Information Commissions of a few States- the cases revealed that in cases of mal feasance, corruption and administrative inadequacies, the Commissions powers were limited to providing information to the petitioners and couldnt extend to punishing delinquent officials. Providing information cannot be the sole purpose of the RTI Act if it is to evolve as an effective mechanism of accoutnability.Revealing inadequacies therefore has to be coupled with remedial measures and action against delinquent officials. It is not enough that the PIO ‘plays the postman’.

Going by its success, the State will have to find means to chart the future course of the RTI. The current scenario being the State is trying to amend the RTI to make it less troublesome, I have a slightly different opinion on this aspect. I just concluded a study which showed that the RTI Act can actually be used by the State to its advantage; to increase inefficiency and make its job easier. Reducing corruption and increasing productivity of State Action in a particular area can be convenient byproducts of the RTI. Proactive disclosure of government programs, surveys and findings of investigative agencies for example are simple ways of making sure that officials are less likely to abuse their power. Arbitrariness in administrative decision making being another major hassle, it was seen that the RTI could be used very effectively cull out these deficiencies. A study by the Centre for Policy Research shows that while the Information Commission, on appeals reveal that there has been gross misconduct on the part of the officials, they are generally powerless when it comes to penalising such officials since their powers are restricted to providing information; the applicants continue to remain victims of such practices and are directed to seek remedies from alternative forums, thus falling into the vast cavernous syncholes of a defective justice dispensing system.

First thing on the plan therefore should be to increase the powers of the Information Commissions. This however, will not do much unless an elaborate network is formed whereby the Commissions act in tandem with other tribunals that will go a long way towards strengthening the system of accountability in the Country. With the number of cases in Courts piling up and rising costs of litigation, it may very well be that the balance of power among the organs of the State has tilted away from the Judiciary. The Common man must avail of its benefits and as such will only be possible if it is convenient for him to do so.

A few years back, I wrote a post on Implicity commending the efforts of Ms.Aruna Roy in the enactment of this Statute. I doubt one could predict its success in such formative years.